Criminal Law Commons^™

Sex Trafficking Laws In East Tennessee, Cheryl Page

Journal Publications

There was a time in U.S. history when opponents of the trans-Atlantic slave trade had to convince the watching world that slavery was horrid and against the laws of humanity. Today, modern-day abolitionists are attempting to make a sleeping world aware that slavery still exists. There are approximately 27 million people currently enslaved in the world today. It is a problem that our own community cannot ignore, because slavery exists in East Tennessee and is thriving. Slavery in East Tennessee takes the form of sex trafficking, in which women and children are bought and sold as property for the sexual …

It's A 'Criming Shame': Moving From Land Use Ethics To Criminalization Of Behavior Leading To Permits And Other Zoning Related Acts, Patricia E. Salkin, Bailey Ince

Scholarly Works

In the past, land use ethics inquiries predominately involved conflicts of interest or an official holding public office while engaging in a previously held business or law practice. Now, prosecutors are looking at the underlying criminality of the unethical acts carried out in the context of land use decisions. With a wide array of criminal statutes in the hands of federal prosecutors, almost all forms of unethical conduct could in some way also violate a federal criminal statute.

Part II of this article reviews the federal statutes most often used by federal prosecutors and provides some examples of recent reported …

Autopsy Reports And The Confrontation Clause: A Presumption Of Admissibility, Daniel J. Capra, Joseph Tartakovsky

Faculty Scholarship

Courts nationwide are divided over whether autopsy reports are “testimonial” under the Sixth Amendment’s Confrontation Clause. Resolving that split will affect medical examiners as dramatically as Miranda did police. This article applies the latest Supreme Court jurisprudence to the work of modern medical examiners in a comprehensive inquiry. It argues that autopsy reports should be presumed non-testimonial—a presumption overcome only by a showing that law enforcement involvement materially influenced the examiner’s autopsy report.

Regulation, Prohibition, And Overcriminalization: The Proper And Improper Uses Of The Criminal Law, Paul J. Larkin, Jr.

Hofstra Law Review

The function of the criminal law is to effectively enforce the moral code that every person knows by heart — to enforce the minimum substantive content of the social compact by bringing the full moral authority of government to bear on violators. By contrast, the function of the regulatory system is to efficiently manage components of the national economy using civil rules, rewards, and penalties to incentivize desirable behavior without casting aspersions on violations attributable to ignorance or explanations other than defiance. Treating regulatory crimes as if they were no different than “street crimes” ignores the profound difference between the …

A Dedication To Andrew E. Taslitz: “It’S All About The Egyptians,” And Maybe Tinkerbell Too, Stephen Henderson

Other Faculty Publications

This brief memorial remembers Andy's incredible friendship and service, and explains why this Symposium volume is so appropriately dedicated to his memory.

Regulating Sexual Harm: Strangers, Intimates, And Social Institutional Reform, Allegra M. Mcleod

Georgetown Law Faculty Publications and Other Works

The criminal regulation of sexual harm in the United States is afflicted by deep pathology. Although sexual harm appears before the law in a variety of forms—from violent rape, to indecent exposure, to the sexual touching by an older child of a younger child—the prevailing U.S. criminal regulatory framework responds to this wide range of conduct with remarkable uniformity. All persons so convicted are labeled “sex offenders,” and most are subjected to registration, community notification, and residential restrictions, among other sanctions. These measures purport to prevent the perpetration of further criminal sexual harm by publicizing the identities and restricting the …

Evidence-Based Sentencing And The Scientific Rationalization Of Discrimination, Sonja B. Starr

Articles

This Article critiques, on legal and empirical grounds, the growing trend of basing criminal sentences on actuarial recidivism risk prediction instruments that include demographic and socioeconomic variables. I argue that this practice violates the Equal Protection Clause and is bad policy: an explicit embrace of otherwise- condemned discrimination, sanitized by scientific language. To demonstrate that this practice raises serious constitutional concerns, I comprehensively review the relevant case law, much of which has been ignored by existing literature. To demonstrate that the policy is not justified by countervailing state interests, I review the empirical evidence underlying the instruments. I show that …

Mass Incarceration And Employment, Steven Raphael

Employment Research Newsletter

No abstract provided.

Correcting Criminal Justice Through Collective Experience Rigorously Examined, James S. Liebman, David Mattern

Faculty Scholarship

Federal and state law confers broad discretion on courts to administer the criminal laws, impose powerful penalties, and leave serious criminal behavior unpunished. Each time an appellate court reviews a criminal verdict, it performs an important systemic function of regulating the exercise of that power. Trial courts do the same when, for example, they admit or exclude evidence generated by government investigators. For decades, judicial decisions of this sort have been guided by case law made during the Supreme Court's Criminal Procedure Revolution of the 1960s and 1970s. It is becoming increasingly clear, however, that the rule-bound, essentially bureaucratic regulatory …

Function And Dysfunction In Post-Conflict Justice Networks And Communities, Elena Baylis

Vanderbilt Journal of Transnational Law

The field of post-conflict justice includes many well-known international criminal law and rule of law initiatives, from the International Criminal Court to legal reform programs in Afghanistan and Iraq. Less visible, but nonetheless vital to the field, are the international staff (known as internationals) who carry out these transitional justice enterprises, and the networks and communities of practice that connect them to each other. By sharing information, collaborating on joint action, and debating proposed legal rules within their networks and communities, internationals help to develop and implement the core norms and practices of post-conflict justice. These modes of collaboration are …

What Is Philosophy Of Criminal Law?, Review Of The Oxford Handbook Of Philosophy Of Criminal Law By John Deigh & David Dolinko, Eds., Youngjae Lee

Faculty Scholarship

No abstract provided.

Forget Sentencing Equality: Moving From The “Cracked” Cocaine Debate Toward Particular Purpose Sentencing, Jelani Jefferson Exum

Faculty Publications

While a racial equality-themed discourse has traditionally fueled the crack-versus-powder cocaine sentencing debate, this Article asserts that seeking equality in sentencing outcomes is the wrong goal. This Article argues that reformers seeking racial equality in sentencing are misguided in using the cocaine sentencing standards as a benchmark of fairness, because the current cocaine sentencing standards do not effectively serve the purposes of punishment. Rather than focusing on equality, this Article advocates implementing Particular Purpose Sentencing, which involves developing a framework for drug offenses to be analyzed individually and matched with punishments that purposefully address the concerns associated with the particular …

Blind Injustice: The Supreme Court, Implicit Racial Bias, And The Racial Disparity In The Criminal Justice System, Tyler Rose Clemons

Faculty Publications

(Excerpt)

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” This statement by Chief Justice John Roberts in 2007 is alluring in both its grammatical symmetry and its logical simplicity. Yet it encapsulates the naiveté of the view of racial discrimination currently held by the majority of the justices of the Supreme Court of the United States. Chief Justice Roberts’s assertion contains the implied assumption that the only racial discrimination that exists—or at least the only kind that matters under the Constitution—is explicit and susceptible to conscious control. Decades of …

Impeachment By Unreliable Conviction, Anna Roberts

Faculty Publications

This Article offers a new critique of Federal Rule of Evidence 609, which permits impeachment of criminal defendants by means of their prior criminal convictions. In admitting convictions as impeachment evidence, courts are wrongly assuming that such convictions are necessarily reliable indicators of relative culpability. Courts assume that convictions are the product of a fair fight, that they demonstrate relative culpability, and that they connote moral culpability. But current prosecutorial practice and other data undermine each of these assumptions. Accordingly, this Article proposes that before a conviction is used for impeachment, there should be an assessment of the extent to …

20 Years Of Domestic Violence Advocacy, Collaborations, And Challenges: Reflections Of A Clinical Law Professor, Suzanne E. Tomkins

Journal Articles

No abstract provided.

Reframing Domestic Violence As Terrorism Or Torture, Isabel Marcus

Journal Articles

No abstract provided.

When Is A Youtube Video A "True Threat"?, Pedro Celis

Washington Journal of Law, Technology & Arts

In United States v. Jeffries, the Sixth Circuit upheld a defendant’s conviction under 18 U.S.C. § 875(c) for transmitting a threat through interstate commerce after the defendant posted a music video on YouTube. The video threatened a local judge presiding over the defendant’s child custody proceedings. Circuits have split on whether § 875(c) and other similar federal threat statutes require the defendant to possess a subjective intent to threaten. This Article argues that the “true threat” test courts use to apply § 875(c) essentially incorporates a subjective intent to threaten. The Article then applies the subjective intent requirement to …

We Are Not Who We Pretend To Be: Odr Alternatives To Online Impersonation Statutes, Kori Clanton

Cardozo Journal of Conflict Resolution

This Note focuses on how online dispute resolution ("ODR") processes, as opposed to litigation, offer a more efficient and effective legal solution to resolving online impersonation disputes. The purpose of this Note is to analyze the measures state legislatures and social media websites have implemented to combat online impersonation cases, and to propose a practical ODR solution that will eliminate the burdens of litigation and provide a cost-efficient and time-effective remedy. Section I provides an introduction to the current relevance and rising incidents of online impersonation via social media websites such as Facebook and Twitter. Section II explores the historical …

"Because Ladies Lie": Eliminating Vestiges Of The Corroboration And Resistance Requirements From Ohio's Sexual Offenses, Patricia J. Falk

Cleveland State Law Review

The Ohio General Assembly has made considerable progress in modernizing the state’s rape laws, eliminating many of the substantive and procedural obstacles to the successful prosecution of criminals. Yet, Ohio’s contemporary sexual offense provisions include vestiges of both the corroboration and resistance requirements. More specifically, the corroboration requirement (1) still applies to the crime of sexual imposition and (2) is used as a grading factor in gross sexual imposition. The resistance requirement (1) has been eliminated from rape and gross sexual imposition, but not sexual battery and sexual imposition, and (2) the wording of the existing resistance-elimination provisions is legally …

Prosecutor V. Taylor, Charles Chernor Jalloh, David P. Stewart

Articles

No abstract provided.

Expanding The Scope Of Who May Petition For Domestic Violence Protective Orders In Kentucky, Sarah Lawson

Kentucky Law Journal

No abstract provided.

Pretrial Detention In Kentucky: An Analysis Of The Impact Of House Bill 463 During The First Two Years Of Its Implementation, Robert Veldman

Kentucky Law Journal

No abstract provided.

Text Me: A Text-Based Interpretation Of 28 U.S.C. § 2255(E), Jennifer L. Case

Kentucky Law Journal

No abstract provided.

The Special Problem Of Banks And Crime, Gregory M. Gilchrist

University of Colorado Law Review

Federal prosecutors face increasing criticism for their failure to indict large banks and bankers for serious criminal conduct, including allowing violent drug cartels to launder hundreds of millions of dollars, willfully conducting business with rogue nations and terrorists, and manipulating the LIBOR to defraud investors. This Article argues that the non-prosecution of banks is often justified by proper consideration of externalities and that the nonprosecution of bankers is often explained by lack of evidence or the difficulty of white-collar prosecutions generally. Nevertheless, the result is that extremely serious criminal conduct is penalized by mere fines and negotiated terms of probation, …

Reforming California Sentencing Practice And Policy: Are We There Yet?, Michael Vitiello

McGeorge School of Law Scholarly Articles

No abstract provided.

Probable Cause And Reasonable Suspicion: Totality Tests Or Rigid Rules?, Kit Kinports

Faculty Scholarship

This piece argues that the Supreme Court's April 2014 decision in Navarette v. Calfornia, like last Term's opinion in Florida v. Harris, deviates from longstanding Supreme Court precedent treating probable cause and reasonable suspicion as totality-of-the-circumstances tests. Instead, these two recent rulings essentially rely on rigid rules to define probable cause and reasonable suspicion. The article criticizes the Court for selectively endorsing bright-line tests that favor the prosecution, and argues that both decisions generate rules that oversimplify and therefore tend to be overinclusive.

The Crime Of Being In Charge: Executive Culpability And Collateral Consequences, Katrice Bridges Copeland

Faculty Scholarship

This Article argues that the government's exclusion of executives who have been convicted as "responsible corporate officers" for a period longer than three years without any showing of moral blameworthiness is misguided. The responsible corporate officer doctrine is flawed because under the doctrine it is irrelevant that the executive did not intend for the misconduct to occur. It is not a defense that the executive delegated responsibility in good faith. Nor is it a defense that the executive is not knowledgeable about or did not participate in the misconduct. The only potential defense is impossibility, but it has never been …

Teaching The Art Of Defending A White Collar Criminal Case, Katrice Bridges Copeland

Faculty Scholarship

This Article discusses the author's experience with effectively teaching a white collar crime course.

Hiv, Violence Against Women, And Criminal Law Interventions, Aziza Ahmed

Faculty Scholarship

The growing calls for the “securitization of body and property,”[ii] documented by Jonathan Simon in his book Governing Through Crime, illustrates a deep tension in our understanding of the role of criminal law as a tool for societal transformation.[iii] For some, including communities of color, the criminal legal system is a place where inequality flourishes;[iv] for others, including those feminists who have support criminal law interventions, it has become a tool to realize equality.[v] The Trafficking Victims Protection Act, reauthorized in 2013 as an amendment to the Violence Against Women Act (VAWA),[vi] relies heavily on the criminal law to obtain …

Further Reflections On The Pardoning Power: Reply To Hoskins And Drinan, Chad Flanders

All Faculty Scholarship

Galifianakis: "First question. In 2013, you pardoned a turkey. What do you have planned for 2014?"

Obama: "We'll probably pardon another turkey". ¹

First, let me express my gratitude to the incisive comments of Zach Hoskins and Cara Drinan. I have long been a fan of Hoskins' s work, and his forthcoming book on the collateral consequences of punishment promises to be pathbreaking.² The influence of Drinan's scholarship on the pardoning power³ is evident in my original essay⁴ and her newer work on the Graham case has again inspired me in new directions in my research.^{5 …}